< (Please welcome in the comments Tom Geoghegan, author of See You in Court: How the Right Made America a Lawsuit Nation and host Rick Perlstein — jh)
We all know conservatism killed something. It’s just hard for us to put our finger on exactly what. We smell it, we feel it, we taste it—how the elementary particles of civilization, the very molecules that join together our social life, have been breaking down. But, not being molecular physicists, we somehow can’t describe it, can’t name it. You have to be really, really smart, pay extraordinary attention to the tiniest details, to do that.
Tom Geoghegan? He’s our molecular physicist. In his daily work as a lawyer for people screwed by the new American order—employees fired for joining a union, losing their pensions, replaced by younger workers that companies can pay less; working mothers whose daily life is monopolized by harassment from collection agencies; retirees sued for debts they didn’t even know they owed—he’s gathered the evidence to make sense of all that does not make sense.
So read Tom Geoghegan. For those who haven’t had time for See You in Court—let alone his other masterpieces, Which Side Are You On? (1991), The Secret Lives of Citizens, and In America’s Court (2002)—I’m pleased to provide Cliff Notes. Goggle this. I’ll wait.
Back yet? Good. You’re hooked.
So what’s the argument?
In the world Ronald Reagan gave us, "More and more people experience the law as arbitrary." Our work lives, even if we weren’t necessarily in unions, were bounded by stable, transparent, easily enforceable contracts. Now we sign "employee handbooks" that look like labor contracts used to look—"but on page 100 it says: ‘Nothing herein is enforceable.’ Warning: This is not a contract. We take job because of promised "lifetime" benefits that get cut off with a week’s warning.
Here’s a classic Geoghegan aperçus, what he sees every day in the trenches among his working class clients: "With no early retirement and no funded pension based on thirty years and out, the only way ‘out’ for people now is to fight to get on Social Seurity disability…. Disability is the new kind of welfare, a kind of AFDC for older men. We got young single mothers off welfare, and we have older men on instead…. And they aren’t faking. People really are sick. It’s the stress of not having a pension or a retirement. To keep taking on stress is an unconscious way of trying to put yourself out of business. It’s a call for help. Or maybe it’s despair."
I guess that’s why Geoghegan’s books don’t become bestsellers: most of us would prefer to avert our eyes from the spectacle of old men working themselves near to death, intentionally, because it’s the only way they can imagine a secure and stable environment. Of course we avert our eyes: we let it happen. "Over the last thirty years, we have made big changes in the law. But to all these big changes, there has been no real consent."
What happened? Instead of contracts, we have tort—suing people for perceived wrongs. That got rid of an efficient, predictable, cheap method for settling disputes. "People scream over something for years that a union business agent used to handle in a single afternoon." Instead, you get slash-and-burn lawsuits, with endless periods of harassing "discovery," in which opposing lawyers endeavor into plaintiff and defendants’ hearts. Which rich corporations love. Because they can afford to hire more and more voracious lawyers, and keep the thing going on forever, until ordinary folks simply give up.
Or, if it’s a credit card company they’re dealing with, they’ll be forced to submit to "arbitration"—and the banks literally hire the arbitrators. "The more we ‘rationalize’ the law to get out of the way of the market, the more irrational and arbitrary it seems to become."
"People want more stability, but they keep getting less." That’s the wages of deregulation." Instead of the government setting the rules, we give the field over to boodlers, and call it a "free market." "And one paradox is that the more we deregulate, the more we have to go to court—much more than fifty years ago." Or, as he puts it more pithily: "When people are treated like suckers, no wonder they’re in court." And the rich love lawsuits. Or they certainly prefer them to democracy.
They hate citizenship, too. All Tom’s books are about citizenship. In this one, he points out that when companies fire union-minded folk, they strangle nascent citizens in their cradle—"the types who go to meetings. Our worthiest citizens learned a terrible lesson: don’t stick your neck out, don’t worry about your neighbor, don’t get involved. All these illegal firings had a paralyzing effect on the political life of this country, as it is lived out at the median income level and below."
Another cost of deregulation: "charitable institutions" that chew people up and spits them up like bloodthirsty beasts. "No trustees, the guardians… Indeed, these new voracious ‘charities’ are partly responsible for our litigation mess… Hospitals and doctors sue their patients far more than their patients sue them." One thing it isn’t: a free market. A "charity" hospital "picks any price it likes, and then effectively negotiates the real contract in court, by threat and intimidation."
All these intersecting vicious circles just degrade the moral level of our civilization. "Getting rid of law does not end litigation. It often leads to new types of litigation, especially the kind where people stalk each other for revenge."
"We can identify with the guarded or we can identify with the guards…. more and more of us are developing the moral character of guards….. Instead of celebrating equality under the law, we are developing more of a Hindu sense of caste."
"It will be truly hard to imagine all of us under a single rule of law…. It’s not the income inequality, but the sense of unfairness and futility that is so destabilizing."
"Perhaps as the rich get richer, the meek get meeker. Instead of farmers or skilled mechnanics or industrial workers in unions, more people work in ‘services.’ They ‘serve.’ Just as waiters depend on the rich for tips, more of us also earn our living by currying favor with people higher up."
Grim stuff, yes. But as for me, it’s not like I read every word Tom Geoghegan writes out of some misbegotten sense of duty. I read it because he’s hilarious.
"I became co-counsel in a suit against a drug company. The original lawyer started with one woman, a top salesperson. The drug company replaced her with an ex-college cheerleader, a blond bunny who could lure the doctors into the lobby and giggle and say, ‘Would you like to see my pills?’ But usually it’s a pattern. In fact, other people lost jobs to bunnies. The drug industry is turning into a version of Hooter’s."
Hilarious, and hopeful. This book, unlike all his others, features a concluding chapter with a program for what we can, as citizens, do about all this. Ask him, maybe, about that.